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Troublesome Questions for President Trump
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In a startling revelation earlier this week, The New York Times published what it claims are 49 questions that special counsel Robert Mueller sent to lawyers for President Donald Trump. The questions are apparently a road map of inquiry that Mueller and his prosecutors and FBI agents plan to put to the president if the president agrees to sit down for an interview with them.

I have been arguing for months that the president should not agree to an interview with Mueller. My reasons are fairly boilerplate: It is nearly impossible to talk prosecutors who are determined to seek an indictment into changing their minds. As well, the person being interviewed cannot possibly know as much about the case as the team doing the interview, and he will be prone to error.

In the interview environment, one small lie can result in one big headache of an indictment, even if the lie is about an extraneous matter. When federal prosecutors question a potential defendant, who appears voluntarily and is not under oath, the questioners can lie to the person being interviewed, but he cannot lie to them without risk of indictment. Just ask Martha Stewart. This is exquisitely unfair, but it has been federal law for generations.

The Supreme Court has ruled that federal prosecutors and FBI agents can use trickery, deceptions and outright falsehoods — even disguises, verbal traps and fraud — to help them extract information from a witness or person they are investigating. Given the president’s well-known propensity to talk at length on many disjointed matters and to think both aloud and unfiltered — witness his 30-minute unannounced telephone interview on live cable television with my colleagues on “Fox & Friends” last week — there is a very serious danger that he would contradict himself and even contradict facts for which the special counsel has hard evidence.

Donald Trump is the subject of a criminal investigation. When prosecutors interview a person they are investigating, it is to help the investigation, not the subject of it.

As if all of this were not enough to dissuade a self-confident Trump from sitting down with an all-knowing Mueller and his crew, now come the 49 questions Mueller has told Trump’s lawyers he wants to ask the president. Though many of these at first blush appear not to challenge the president’s memory or command of facts, consider a deeper analysis.

There are two species of questions here. One set of questions is intended to get the president off on a disjointed monologue to see whether he — as he did on “Fox & Friends” — will admit to something without actually being accused or even asked about it. The others are questions to which Mueller already knows the answers and for which he has irrefutable hard evidence — and the quest is to see whether the president will be truthful.

As well, both types of questions are mere starting points — intended to lull Trump into a comfortable but false sense of security — which would then be followed with curveballs he would have great difficulty trying to hit.


One of Mueller’s questions is profound, and I have not seen anything like it in all the literature and legal arguments preceding the Times’ revelation this week: “What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?”

Prosecutors need a factual or good-faith basis to trigger their questions. This question goes to the heart of the so-called collusion issue. I say “so-called” because “collusion” is a media and a political word; it does not describe anything in the law. What Mueller is looking for is a conspiracy, which is the easiest crime for prosecutors to prove because the crime need not have been successful. The late Justice Robert Jackson, himself a former U.S. attorney general, famously called conspiracy prosecutors’ favorite crime.

The essence of conspiracy is an agreement — here, an agreement to accept campaign assistance from a foreign person, entity or government, which is illegal, even if the assistance never arrived. The essence of the crime is the agreement, not the receipt of something of value. The conspirators need not have met together or even be known to each other, providing at least one of them took at least one material step — such as a phone call or a meeting with Russians offering help — in furtherance of the agreement.

If there is truth underlying this question — if Mueller has hard evidence that the true answer is “yes” — it could only have come to Mueller from Rick Gates, Manafort’s former business partner and co-defendant and now Mueller’s star witness. Gates could have told Mueller in return for Mueller’s dropping charges against him that Manafort reached out to the Russians, in which case Mueller would want to test Trump’s knowledge, understanding and truthfulness on this white-hot issue.

If Trump were to answer “no” and Gates told the grand jury that Trump did know of this, Mueller could claim Trump lied and ask the same grand jury to indict Trump for that. If Trump were to answer “yes,” that would be the end of his presidency. If he were to give a rambling non-answer, Mueller would make the most of it.

Are prosecutors fair? Many are, but their common view is that they need not always be fair because they are after bad guys who don’t play by the rules. To the prosecutorial mind, it is for judges and juries to be fair.

What should Trump do? He should go about the business of being president. He should do what is most difficult for him: stay silent. Don’t trust a man who owns a grand jury. Don’t help him undo your presidency.

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Donald Trump 
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  1. anonymous[149] • Disclaimer says:

    “If Trump were to answer ‘no’ and Gates told the grand jury that Trump did know of this, Mueller could claim Trump lied and ask the same grand jury to indict Trump for that.”

    I remain agnostic about all this. You can indict a ham sandwich. Judge Andy knows this–and so does Mueller. Mueller better produce something more substantial than the mere word of Gates, otherwise “he got nuttin’.” And “bang” goes his case. On the other hand, Trump had better hope that Mueller doesn’t have something laying in the weeds. If he does, “bang” goes Trump.

    • Replies: @Jonathan Mason
  2. @anonymous

    It is all a game. Trump is no more likely to speak to investigators than OJ Simpson was to take the stand in his own defense.

    • Replies: @anonymous
  3. Rational says:


    And Bengazi?

    What about fast and furious?

    How come the Dems never get indicted, though they commit most of the crime, but Trump is investigated for a fake scandal? Its because the Dems own and operate America’s fake legal system.

    Trump must fire Mueller.

    Welcome to America’s fake legal system.

    • Replies: @anonymous
  4. mary says:

    “one small lie can result in one big headache of an indictment, even if the lie is about an extraneous matter.”

    Napolitano is misstating the situation here and it pisses me off. It is not “one small lie” that can result in an indictment. It is anything that the totalitarian creeps can convince a stupid jury is a lie. The lengths these creeps go to to put innocent people in jail is unbelievable, Martha Stewart being the poster child.

    Stewart was convicted of manipulating her company’s stock price. How did she do that? By saying that she was innocent of “insider trading,” which she was. In fact, she was never even accused of insider trading by the prosecution. Look it up. Because she said she was innocent of a fake crime with which she was never charged, she was convicted.

    Ham sandwich, indeed.


  5. R Daneel says:

    Never, ever talk to the police without your lawyer present.

    Never talk to the FBI. Period.

    • Replies: @RadicalCenter
  6. Bubba says:

    The good judge Napolitano is delusional. This whole Russia investigation is a complete joke and amounts to nothing in comparison with the crimes committed by the FBI, DOJ, IRS, EPA, et al. which are ignored. You are a Deep State supporter so go F yourself and please thank the American taxpayers like me (with no retirement in a private company) for your cushy pension. May it end not well for you and your asinine friends in DC.

    • Replies: @RadicalCenter
  7. “Donald Trump is the subject of a criminal investigation.”

    It should not be possible for a sitting president to be said subject, but the racial socialist media have been manipulating language for over a year, with the help of seditionist Republicans like Jeff Flake and John McCain, in order to set up such a legal fait accompli.

  8. @R Daneel

    Never talk to either of them, even with a lawyer.

  9. @Bubba

    Napolitano was a State-court judge, not a federal judge, so you didn’t help pay his salary unless you were a New Jersey taxpayer 1997-2005 or whenever his eight years on the bench were.

    If he’s a friend of the deep state or the government generally, he has had a funny way of showing it. He supports abolition of much of the fed gov.

    • Replies: @anonymous
  10. anonymous[340] • Disclaimer says:

    Please take less than an hour to review his columns since last November in light of my and others’ critical comments. (That includes a more recent piece than this one, by the way.) You will see that he is cheerleading RussiaGate and trying desperately to cover for his saintly “feds.”

  11. anonymous[277] • Disclaimer says:
    @Jonathan Mason

    Nor should he.

  12. anonymous[277] • Disclaimer says:


    Because she lost. Trump said he was going to pursue this matter after he got elected. Yeah, right!

    • Replies: @Jim Christian
  13. I’ve had friends over the years that got caught up in things that involved me in a peripheral sense in situations that involved cops, prosecutors, even the FBI (I’m not a mobster or criminal, but I have some golf buddies and customers that have sketchy pasts and presents, who doesn’t, right?). There is no immunity, there is no protection against prosecutors and cops other than never talking to them. The key for Trump is not to talk to them, ignore the subpoenas and force those bastards to a trial in the Senate. When you become that much of an obstacle, they’ll drop it. Now, if you’re a real criminal and have hurt people, that’s another story. But when they’re fishing a citizen for dirt on an object of an ‘investigation’ (U.S. Marshals are always guilty of this, God love ’em) the only defense is never to talk to them. Once you give them the time of day, not even a lawyer you could never afford can save you.

    Guilt-by-association is REAL. They can and will make truth into a lie and next thing you know, you’re cuffed to a table in a quiet room and a tape recorder playing “Lets Make A Deal” with some ass-wipe prosecutor. This is what they DO. Ask Manafort. Never, EVER talk to cops. Make THEM come to you and get THEM on the record. Force them before a judge to justify what they’re doing. I wouldn’t tell them it was 3PM if that’s what was on my watch, myself and that stance has served me well.

  14. @anonymous

    Because she lost. Trump said he was going to pursue this matter after he got elected. Yeah, right!

    The reason Hillary hasn’t been called is because she won’t cooperate. Oh, she cooperated with softballs, but that was forgiven as ‘careless’, not negligent in the Fall of 2016. We need a prosecutor that will hold her to the same standard as a sailor, prosecuted in 2014, recently pardoned. Sessions is the key. He’s the ultimate Deep State operative. He recused himself for no reason except to go soft on Hillary. He’s the rat. He’s Barzini. It was Barzini all along. Sessions needs to be fired. Is that an impeachable offense, firing the Deep State operative? Let’s find out. Trump isn’t pursuing these things. So much so, that I wonder if he hasn’t been turned. Could be, Trump is now Deep State himself. He has a lot of Grandchildren to threaten after all. These sociopaths have long arms after all. The Deep State, these are the people who kill people, bank on it.

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